LABOR BOARD v. RADIO ENGINEERS

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 69, National Labor Relations Board, Petitioner, versus Radio and Television Broadcast Engineers Union.

Mr. Manoli.

Mr. Dominick L. Manoli: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Second Circuit.

In general, the case deals with the function of the National Labor Relations Board in administering the so-called jurisdictional disputes provisions of the National Labor Relations Act and the disposition which the Board is to make of these disputes under the statute.

Section 8 (b) (4) (D) of the statute makes it an unfair labor practice for a labor organization to engage in a strike on a work stoppage to force an employer to assign particular work to the members of a labor organization -- the members of one labor organization for trade or craft or group rather than to those of another, unless the employer is failing to conform to a Board order or certification determining the bargain representative of employees performing such work.

Section 10 (k) of the statute provides that whenever there is a charge alleging a violation of the Section 8 (b) (4) (D), the Board is empower -- is empowered and directed to hear and determine the dispute ought of which the unfair labor -- the alleged unfair labor practice arose, unless the parties have agreed upon voluntary methods for the settlement, the adjustment of the underlying dispute.

Now, these provisions of the statute have given rise to two schools of thought, as to the function of the Board in adjusting these jurisdictional disputes in the absence of a preexisting Board order or certification within the meaning of Section 8 (b) (4) (D).

Three Circuit Courts of Appeals have held that Section 10 (k) requires the Board in the absence of a Board order or certification within the meaning of 8 (b) (4) (D) that Section 10 (k) requires the Board to arbitrate the dispute.

And on the basis of such matters as tradition, practice and custom, to affirmatively award the work to one union to the members of one group or the others.

Now, the Board on the other hand and the Fifth Circuit and perhaps the Ninth Circuit have taken the position that the Board discharges its function.

In such, under Section 10 (k) when it determined solely whether the disputed assignment of work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D) and as I shall explain later in derogation of a collective bargaining contract covering the assignment of this work.

Now, the question before this Court in these cases is which of these views is the correct view.

Now, the facts which give rise to this controversy and the particular case here are not in dispute and I shall summarize them very briefly.

The Electrical Workers Union and the stagehands union, they have a big long name but I'll call them stagehands union.

The stagehands unions represent various technicians of the Columbia Broadcasting Company.

For many years, there's been a dispute between these two unions as to -- as to which of them is entitled to perform what is called remote lighting work.

And remote lighting work, as I understand from the record, involves the install -- the installations -- the installation and the operation of lighting equipment in connection with a telecast which originates our way from the home studio of the broadcasting company.

Now, during the period in question here, both unions had collective bargaining contracts with the Columbia Broadcasting Company but either contract, however, covered the assignment of this disputed work.

And the dispute came to ahead in 1956 in connection with a show which the company was about to televise or telecast, whatever the verb is, from the Waldorf-Astoria Hotel in New York City.

In advance of the show, the Company informed the Electrical Workers that it was going to assign this remote -- remote lighting work.

It was going to assign it for the stagehands.

The electricians protested claiming that they were entitled to this work and that they would be -- that there would be the nature of control unless they got it.

Now, the company refused to exceed to this request and the upshot was that the Electrical Workers refused to operate the cameras which was necessary in order to televise the show and as a consequence, the show was canceled.

Now, the Company then filed charges with the Board alleging that this work stoppage by the electricians was in violation of Section 8 (b) (4) (D), which as I said a moment ago makes an unfair labor practice for a union to strike to force an employer to assign particular work with members of one group or another unless it is governed by -- unless the employer's assignment of the work is in derogation of a preexisting Board order certification within the meaning of Section 8 (b) (4) (D).

Upon these charges, when these charges were filed, then the Board proceeded to the preliminary hearing that Section 10 (k) requires.

Section 10 (k), as I said a moment ago, empowers and directs the Board whenever a charge is filed alleging a violation of 8 (b) (4) (D) to hear and determine the dispute.

Justice William J. Brennan: May I ask, Mr. Manoli, do you follow the usual procedures in hearings under 10 (k) that is, if there's a reference to an examiner, the report and --

Mr. Dominick L. Manoli: There is a reference to a hearing officer.

Justice William J. Brennan: A hearing officer (Voice Overlap) --

Mr. Dominick L. Manoli: To a hearing officer but there is no report, Your Honor.

The matter then goes directly to the Board and the Board then will make a --

Justice William J. Brennan: On the record made before the hearing officer?

Mr. Dominick L. Manoli: Exactly, exactly.

Now, in the Section 10 (k) proceedings, after the hearings before a hearing officer and on the record made before him, the Board determined that there was reasonable cause to believe that the work stoppage was in violation of Section 8 (b) (4) (D).

This was an -- not ultimate determination on the facts but a determination, there was probable cause for believing that the work stoppage was within the proscription of 8 (b) (4) (D).

The Board also found in that case that the employer's assignment of this disputed remote lighting work was not in derogation of an existing Board order or certification within the meaning of Section 8 (b) (4) (D).

Justice Felix Frankfurter: It has defined it.

Mr. Dominick L. Manoli: Sir.

Justice Felix Frankfurter: It has defined it under (Inaudible)

Mr. Dominick L. Manoli: That's our theory, Your Honor.

And since --

Justice Felix Frankfurter: Is that the dispute?

Mr. Dominick L. Manoli: That's the dispute.

Since the -- since the employer's assignment, as I say, was not in derogation of a Board order certification meaning of Section 8 (b) (4) (D).

Justice William J. Brennan: Excuse me, Mr. Manoli, you -- you didn't quite (Inaudible) did you?

That's not the real dispute with it.

Mr. Dominick L. Manoli: Oh, perhaps -- well, the -- I think that we take the view, we take the view that the Board discharges its functions of 10 (k) when it determines whether or not the employer's assignment of the work is in derogation of a Board order or certification within the meaning of Section 8 (b) (4) (D).

Justice William J. Brennan: The court below said you had to go beyond this.

Justice William J. Brennan: Now -- that's right.

Justice William J. Brennan: And determine who of --

Mr. Dominick L. Manoli: Exactly.

Justice William J. Brennan: -- the competing unions will have work.

Justice Felix Frankfurter: Actually, that's found under the statute.

Mr. Dominick L. Manoli: Sir?

Justice Felix Frankfurter: Actually, that's found under the statute.

Mr. Dominick L. Manoli: Well, that's the argument -- the dispute here, Your Honor.

We say we are -- that the Board need not go beyond making that finding.

Justice Felix Frankfurter: (Inaudible) one or the other.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: All I'm saying is, that (Inaudible)

Mr. Dominick L. Manoli: Yes, sir.

Justice Felix Frankfurter: Alright.

Mr. Dominick L. Manoli: That's right.

Justice Charles E. Whittaker: Well, Mr. Manoli, isn't it true that the consequence or the necessary effect of what the Board appear -- did determine, went beyond what you've just said.

Here, there was a controversy as to whether the employer or the electricians should control this work.

The Board said, "We find that the electricians do not have this work, then that leave it to the employer and hasn't you then met the whole statutes of the Court of Appeals.

Mr. Dominick L. Manoli: That is our position, Your Honor.

Justice Charles E. Whittaker: Did -- you didn't go that far, did you, Mr. Manoli?

Mr. Dominick L. Manoli: Well, perhaps I don't understand the -- for the question but --

Justice Charles E. Whittaker: I thought you were just answering to Mr. Justice Brennan --

Mr. Dominick L. Manoli: Yes, sir.

Justice Charles E. Whittaker: -- that the Court of Appeals that you would not go so far as the Court of Appeals requires you to go.

Mr. Dominick L. Manoli: We, don't.

We --

Justice Charles E. Whittaker: But did not you for the purposes of this case, go fully as far necessarily as the Board held you should.

Mr. Dominick L. Manoli: The Board in this case, as I said, made the determination of the 10 (k) hearing that the employer's assignment of this work was not in derogation of a Board order or certification determining the bargaining representative of employers performing such work.

Second, it had rejected.

The Board had rejected the offer of proof on the part of the union that was entitled to this work by virtue of a past practice.

The Board has taken the position, past practice, tradition or what have you is irrelevant to the determination of this kind.

And therefore, the Board then continue to found that the union was not entitled to this work since this work was not controlled by a Board order or certification within the meaning of 8 (b) (4) (D).

Justice Charles E. Whittaker: Did that determine this dispute to use the language of the statute?

Mr. Dominick L. Manoli: That I think is one of our problems whether that is a determination of dispute within the meaning of the statute.

Justice Charles E. Whittaker: (Inaudible)

Mr. Dominick L. Manoli: [Laughs]

Justice Charles E. Whittaker: (Inaudible)

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: National Labor Relations Board, Petitioner versus Radio and Television Broadcast Engineers’ Union, Local 1212, et cetera.

Mr. Manoli.

You may continue your argument.

Mr. Dominick L. Manoli: May it please the Court.

In my opening remarks last Thursday, I stated that the question presented in this case was whether Section 10 (k) of the Labor Act which requires the Board whenever there is a charge filed alleging a violation of Section 8 (b) (4) (D) which requires the Board to hear and determine the dispute out of which those charges have arisen, whether Section 10 (k) requires the Board in the absence of a preexisting board order or certification the meaning of Section 8 (b) (4) (D) governed the assignment of a dispute work assignment, whether the Board is required to arbitrate the dispute between a rival unions and on the basis of such matters as is tradition, practice and the like to affirmatively award the work of the members of one union or another.

When the Court arose last Thursday, it reached the part in the statement of facts where I was describing what the Board had done in the Section 10 (k) proceedings in this case.

The Board found that the work stoppage by the electrical workers over the assignment of the remote lighting work there was reasonable cause to believe that that work stoppage was in violation of Section 8 (b) (4) (D).

The Board further found that the assignment of this work to the stage hands and instead of electricians was not in derogation of a Board certificate or a Board order within the meaning of Section 8 (b) (4) (D) and that therefore, the electricians were not entitled of the work.

The electricians' unions gave notice as required --

Justice John M. Harlan: Supposing this has been a straight unfair labor charge.

Mr. Dominick L. Manoli: Yes, sir.

Justice John M. Harlan: What is the difference between 10 (k) proceeding and the function of the Board as you see it, a 10 (k) proceeding (Inaudible) under ordinary unfair labor charge (Inaudible) this transaction.

Mr. Dominick L. Manoli: Yes.

The Court could make similar findings if there had been just simply an 8 (b) (4) (D) charge and there had been no statutory procedure for 10 (k).

And of course, this is led to the argument that the Board as it -- has interpreted Section 10 (k), has to form a sort of a useless task, a task which it could just as readily perform in the unfair labor practice proceedings.

Now, I think this is the weighty argument against the Board's position in this case but nevertheless, however, I don't think it is enough to tip the scales against the Board and I will come to that later on in the course of my argument.

Now, as I say, the union gave notice that it would not comply with the Board's determination of this work assignment and accordingly in conformity with the statute, the general counsel issued an unfair labor practice complaint charging the union with a violation of Section 8 (b) (4) (D).

And in the unfair labor practice proceedings, the Board took note of its earlier Section 10 (k) determination that the union -- that the electrical workers were not entitled to this work and it found that the work stoppage was in violation of Section 8 (b) (4) (D) and accordingly, it issued a cease and desist order.

The court below refused to enforce the order and the thrust of its decision is that Section 10 (k) requires the Board where there is no preexisting Board order or Court certification or collective bargaining contract covering the assignment of the work, 10 (k) requires the Board to arbitrate the dispute and on the basis of tradition practice in the like to affirmatively award the work of the one union or the other.

And since the Board had not done this in the Section 10 (k) proceedings, the Court concluded that the conditions prerequisite for the issues of the unfair labor practice order had not been satisfied and that therefore the order was not entitled to be enforced.

Now, before I turn to the statutory considerations which underlie this controversy, I think it would be useful to view the question presented in this case in its historical setting.

Section 10 (k) and 8 (b) (4) (D) of the statute were part of the 1947 Taft-Hartley Amendment to the Act.

The first cases to reach the Board under these provisions for adjudication were decided by the Board in 1949 and in 1950.

And from that time on, a majority of the Board has consistently held that an employer is free under the statute to make assignments of work that the Board would not overrule such assignments of work unless they are in derogation of a Board order or Board certification in the meaning of Section 8 (b) (4) (D), and as I shall explain later, of a collective bargaining contract.

And that absent those factors, absent such derogation that a union is not free to seek to override by virtues -- by work stoppages or by strives to seek to override the employer's assignment of the work.

Now, on at least two occasions, since the Board first charted its course in this area, on at least two occasions there have been proposed in Congress or recommended amendatory legislation which would have expressly overruled the Board's interpretation of Section 10 (k).

In 1949, the Senate passed the Thomas Bill which was part of the so-called 1949 Taft-Hartley Act, an aborted bill I might say.

This Thomas Bill would have required the Board or an arbitrator appointed by the Board to hear and determine the dispute and to arbitrate the dispute on the basis have stated within in the amendment itself on the basis of stated criteria including past practice.

The Senate passed that amendment but it died in committee in the house.

Again, in 1943, in hearings before the Senate Labor Committee, the view was stated that the Board had either misinterpreted Section 10 (k) or that if the Board had correctly interpreted Section 10 (k) that Section 10 (k) was inadequate to deal with this -- with the Commerce Bill and that therefore, there should be a change.

Again, nothing came of those suggestions.

And in 1959 when the Congress as the Court well knows, when the Congress made extensive revisions to the Taft-Hartley Act, including revisions of Section 8 (b) (4), of which Section 8 (b) (4) (D) is a part, Congress made no changes in either the procedure or substantive provisions of this statute relating to jurisdictional disputes --

Justice William J. Brennan: And 59 was only the affirmative proposal od such changes (Inaudible)

Mr. Dominick L. Manoli: Was anyone.

Justice William J. Brennan: Any affirmative proposal which the 10 (k) --

Mr. Dominick L. Manoli: No, there was not.

Justice William J. Brennan: It adjusted to 1949 that you say and --

Mr. Dominick L. Manoli: In 1949, there was an amendment, the so-called Thomas Amendment.

Justice William J. Brennan: And then you said there was a later one --

Mr. Dominick L. Manoli: Which was passed --

Justice William J. Brennan: Yes.

Mr. Dominick L. Manoli: -- by the Senate but died in committee.

In 1953 there were hearings before the Senate Labor Committee and among the (Inaudible) was Professor Archibald Cox who said that the Board's reading of 10 (k) was either wrong or if it was right, the statute was inadequate as it stood and should be amended and again, nothing came from that proposal in 19 -- of that recommendations of the hearing in 1953.

Justice William J. Brennan: It was no -- no such affirmative proposal in 1959.

Mr. Dominick L. Manoli: No, there was not.

There was not.

But in 1959 however, in 1959 as I say Congress did engage in extensive revisions of statute excluding 8 (b) (4), which 8 (b) (4) (D) a part and at that time, at that time, the Board and two Courts of Appeals were at odds over the interpretation of Section 10 (k) and the Board had formally stated that it would not abandon its position with respect to its interpretation of Section 10 (k).

Justice Potter Stewart: As the Board's course from the very beginning had been entirely clear, Mr. Manoli it suggested by the respondent that for the first year or two, imprint in 1949 this matter was being considered in Congress.

The Board's position, restricted position was entirely clear and then actually, they -- they have -- the Board have set out a concept of its function under Section 10 (k) of rather similar to the one now tended for by the respondent.

Mr. Dominick L. Manoli: The argument Your Honor is largely founded upon a Board rule which is cited at towards the very end I think in the next and the last page of our brief and apparently, this rule had been sort of a sleeping for many years over at the Board until some smart lawyer picked it up in connection with the case that we had in the Seventh Circuit a case like this one here.

Now, I think we could debate for some time here whether or not the Board's rule on which so much reliance had been placed with a position contrary to the Board's interpretation of Section 10 (k), I think we could debate for some time with that rule as consistent with what the Board has said in its adjudicated in its formal adjudications or where there are some inconsistencies.

But even if there is certain some ambiguity, I think, because the Board itself in 1958 didn't modify the rule to take care of any ambiguity that might be in that rule, but assuming for the sake of argument, the sake of argument, this rule seems to point in the direction of the interpretation as the respondent's urge, I think it should be born in mind that this rule was adopted in 1949, in 1947 rather before the Board -- the administrator -- administrator made before the Board had had the benefit of what Mr. Justice Frankfurter has characterized elucidating litigation and that from 1949 on when the Board issued its initial decisions in this area the Board's position has been fairly consistent or even the majority have been -- had fairly and consistently held to the position that I indicated earlier.

Justice Potter Stewart: The Moore Dry Dock case was the first one and that was --

Mr. Dominick L. Manoli: That's right.

Now that it was -- the Board said that this certain union was not entitled to work but the (Inaudible) was stating that the other union was entitled to work.

The Board got away from that within the next month.

Then the next sections of decisions followed almost by a month the Moore Dry Dock case.

Justice John M. Harlan: But Juno or whatever was the --

Mr. Dominick L. Manoli: The Juno, that's correct, that's correct.

I think it's also interesting to know that in connection with this rule of which so much has been made is that the members of the Board who adopted that rule in 1947 were the same members who decided the two cases in 1949 where the Board as I said announced its position to which it had consistently appeared.

Now, against this historical background that I've just indicated the Board's consistent position here it seems to us and the efforts that have been made in Congress to overrule this interpretation or the recommendations that have been made in Congress to overrule this interpretation, it seems to us that against that background, the Board's into -- long standing interpretation should not be overruled except for the most cogent reasons.

And I venture to say that not only others cogent reasons such reasons will act but then on balance the support which a Board's interpretation finds in the internal structure of the statute add ways to the considerations which militate against it and there are not doubts -- there is no doubt there are considerations that do militate against the Board's position but I say on balance we think that the support which we find in the internal structure of the statute for the Board's interpretation are the ways of those considerations.

Now Section 10 (k) looked at it in isolation and read literally, can be interpreted to mean that something more was required of the Board, something more was required of the Board that whether it was no control in certification of order then to simply uphold as it now does in affect and to simply uphold the employer's assignment and indeed I might say that there are intimations in the legislative history.

Now you use the word intimations advisedly because I think when we come to look at the legislative history as I find to do, we will find that there is no real -- we get no real help.

We get no real help in the legislative history for solving this problem, but as I say there were intimations and there are intimations in the legislative history that at least in the minds of some legislators it was thought that the Board would do something more in Section 10 (k) than to merely uphold the employer's assignment.

Justice Felix Frankfurter: You're going to layout the details whereby in (Inaudible) below that the intent of Congress was clear rather.

Mr. Dominick L. Manoli: I am I will challenge.

Justice Felix Frankfurter: It will at least give to me a clear word.

Mr. Dominick L. Manoli: I will challenge that Your Honor.

I don't think it's anywhere near that clarity.

I stick to my position and we don't -- You don't really get any -- any real help from the legislative history in solving that problem.

Now, the Section 10 (k) can be read literally and if its read in isolation to require that the Board knew something more than uphold the -- the employer's assignment, but the language of Section 10 (k) itself does not require that it does not commend, does not compel that the interpretation because while Section 10 (k) speaks of a Board determination, it does not tell us what the nature of that determination has to be.

I believe that the answer to our problem has to be found not only in the language of Section 10 (k), but from the interplay of various related procedure -- of various related statutory provisions, namely, Section 10 (k) and 8 (b) 4 (D) on the one hand, Section 8 (a) 3 and 8 (b) 2 of the statue which forbid discrimination in employment which encourages or discourages union membership and finally Section 303 of the Labor Management Relations Act which gives to a person who has been injured by one of this jurisdictional disputes the right to seek damages for whatever injury has been caused to him.

Justice Felix Frankfurter: Mr. Manoli, (Inaudible) what you said a minute ago of the word determined, these controversies arise whether in fact it provides or whatever you call it be on this clause, do controversies arise that it would be a less clause would satisfy?

From 8 --

Mr. Dominick L. Manoli: 8 (b) 4 (D)?

Yes the Board has had such cases where it has said that certain disputes where it fell within the unit previously determined by the Board.

Justice Felix Frankfurter: Yes.

Well that that's my impression that had been such.

Mr. Dominick L. Manoli: Yes sir I have been.

Yes sir.

Justice Felix Frankfurter: So that determined may be absorbed by that kind of issue.

Mr. Dominick L. Manoli: That's right.

That's right.

Justice Charles E. Whittaker: (Inaudible) that the statute 10 (k) merely says that the Board shall make a determination without saying what it should determine?

Mr. Dominick L. Manoli: It says that it shall determine the dispute underlying the unfair la -- or they give rise to the unfair labor practice.

Now, the argument here is, is whether the Board in the situation as I say which is not controlled by preexisting Board order or Board certification in Section 8 (b) (4) (D) was the Board had determined the dispute when it says that the union in that situation is not entirely to work and it is not entitled to -- to upset or attempt to upset the employer's assignment of the work.

That as we think is a determination.

Now, Section 10 (k) doesn't say that the Board shall make a determination based upon tradition or custom or what have you.

Justice Charles E. Whittaker: No at least it's free to determine the dispute?

Mr. Dominick L. Manoli: It's right.

That's right.

It does -- it leaves -- it leaves it free to make the kind of determination that is consistent with the rest of it do -- the rest of the statute they say you can't look to Section 10 (k) alone but you must look to other parts of the statute in order to see what the Board has required to do in Section 10 (k).

Justice Charles E. Whittaker: And one more question if I may?

Mr. Dominick L. Manoli: Yes sir.

Justice Charles E. Whittaker: What is not to dispute in this case between CVS and the electrical -- the electricians, the latter claiming this word.

Mr. Dominick L. Manoli: Right.

Justice Charles E. Whittaker: Now did not your order the Board's order settled, determined to use language of the statute, determined that dispute?

Mr. Dominick L. Manoli: It determined that dispute by saying that the electrical workers were not entitled to the work.

Justice Charles E. Whittaker: Was there anything left in dispute after that and in that order in other words meet even the criteria of the Court of Appeals?

Mr. Dominick L. Manoli: Well the Court of Appeal says it does --

Justice Charles E. Whittaker: I know they said that but --

Mr. Dominick L. Manoli: But it's our view that that is the kind of determination that the Board can make and that when it does make that kind of determination that the electrical workers were not entitled to this work that that is the kind of determination which a Board has empowered to make and the only determination which the Board can make in a Section 10 (k) hearing.

And we think that that kind of a determination satisfies the obligation which rests upon the Board in a 10 (k) hearing.

Now, Section 8 (b) (4) (D) of the statute --

Justice William J. Brennan: Excuse me, Mr. Manoli.

Mr. Dominick L. Manoli: Yes.

Justice William J. Brennan: I gather then an unfair labor practice proceeding follows that --

Mr. Dominick L. Manoli: After the 10 (k) hearing --

Justice William J. Brennan: Yes.

Mr. Dominick L. Manoli: -- in the event there is no -- that the union says it will not apply by the determination then we proceed as we did in business with an unfair labor practice.

Justice William J. Brennan: Now what use do you make of the 10 (k) determination and the unfair labor practice?

Mr. Dominick L. Manoli: The Board takes note as it did here of what it had done the determination that it made of the 10 (k) and on the basis of that held that the unions -- the strike was an unfair labor practice since as previously determined and it's previously determined the employer's assignment of the work was not interrogation of the certificate.

Justice William J. Brennan: Well is -- is there further evidence taken or what happens in the unfair labor practice?

Mr. Dominick L. Manoli: There would be no further evidence taken.

There will be evidence taken with respect to the nature of the strike, the responsibility of the union, whether in fact there was a strike for which the union is legally responsible and whether it comes in within Section 8 (b) 4 (D), but for the purposes of the -- of the hassle about the work itself, the Board looks to its earlier determination.

It's pretty much like the representation proceedings where the Board in representation proceeding has determined that a certain unit is the -- is a proper unit then -- and then the employer after the union is won the election and that union refuses to bargain with it in the unfair labor practice theory, the Board does not attempt to re-determine the unit new.

In fact they are going to permit evidence when there has been certain change during the interval and the Board does pretty much the same thing in an 8 (b) (4) (D) situation.

Now Section 8 (b) (4) (D), to explain how the statute works a bit, makes it an unfair labor practice for the union to attempt to override the employer's assignment unless that assignment is in derogation of a bargaining order or certification which in the language of the statute says -- which in the language of the statute determines that bargain Bargaining Representative Clause performing such work.

Now we read those exceptions to refer to a preexisting determination by the Board of the appropriate unit in an either in representation proceedings or an unfair -- previous unfair labor practice proceedings.

And that accordingly the union may not attempt to override the employer's assignment of the work unless, unless the assignment takes out from (Inaudible) unit represented by that union from purchase of collective bargaining unless it takes that work out from under that particular union.

Now I may also add -- I may also say that the Board has read Section 8 (b) (4) (D) to permit a union to engage in a strike of this -- to permit a union to strike against the -- an assignment of work which is in derogation of a collective bargaining contract.

Now the theory underlying this further exception that the Board has read into Section 8 (b) (4) (D) is that a contract of that kind like the certification defines, defines the union's bargaining union and that the unit -- and that the union is entitled to protect the integrity of that unit if the employer seeks to remove certain classifications of work from under that particular unit.

Now, if we look solely to Section 8 (b) (4) (D) the electricians' work stoppage in this case clearly has a violation of Section 8 (b) (4) (D) unless, unless as the court below holds that in a situation of this kind, the Board must arbitrate the dispute and on the basis of tradition, custom and what have you, make an affirmative award of the work to one union or the other.

Now Section 10 (k) of the statute comes into play when an 8 (b) (4) (D) charge is filed.

Normally, when you have an unfair labor practice charge filed with the Board, the general counsel investi -- general counsel investigates such a charge.

If he finds that the charge has merit he issues a complaint, the matter goes to an unfair labor practice hearing and the Board eventually may issue an unfair labor practice cert.

Section 10 (k) however provides for a somewhat different, somewhat different procedure.

It is designed to afford the parties an opportunity and this I'm coming out to your question Mr. Justice Harlan as to what function Section 10 (k) performs that couldn't be performed in an unfair labor practice situation.

It affords the parties -- it affords the parties an opportunity to resolve the matter without the intervention of the Government.

If the parties voluntarily agree upon methods for resolving the dispute and they settle the dispute, that is an end of the matter as far --

Justice William J. Brennan: The Dunlop Board created in connection with this.

Mr. Dominick L. Manoli: The Dunlap Board Your Honor and for the benefit of the other members of the Court who may not be familiar with -- but the Dunlap Board is, this is a joint board that was created shortly after 10 (k) was enacted in 1948.

Justice William J. Brennan: It was -- it was -- it inspired by the enactment of 10 (k)?

Mr. Dominick L. Manoli: Yes, it was.

That's right.

This joint board was setup by the building and trades, building department of the FFL in order to settle the disputes without the intervention of the Government and as a matter of fact during the last 13 years, the so-called Dunlap board or joint board has done a magnificent job.

Justice William J. Brennan: And is it still functioning?

Mr. Dominick L. Manoli: Oh, yes indeed, it is.

It's been -- it's been increasing, I was only a few days ago looking its annual reports and as business has been increasing and I think everyone at the Board is grateful for what the Board has --

Justice William J. Brennan: Well how that -- how does -- a case like this escaped submission to Dunlop Board?

Mr. Dominick L. Manoli: Well in order to get to the Dunlap Board of course, you must have all three parties, let's say two unions and the employer agree to submit their dispute.

Now in this case apparently --

Justice William J. Brennan: In other words are the submissions by the individual cases, isn't this some blanket agreement among the building trade to submit?

Mr. Dominick L. Manoli: There -- there -- I think there -- there is.

I'm not entirely -- I don't entirely recall what that situation is, but as I say, it's essential before that Dunlap Board can take control of these disputes that all parties, all parties --

Justice William J. Brennan: Well, I guess as Justice Stewart remarked these aren't in the building trade?

Mr. Dominick L. Manoli: That's another reason why they are not -- that's right.

This only applies to building trade.

Now as I say, I will be explaining how this like the Section 10 (k) was intended to operate to afford the parties an opportunity to settle their disputes in the Dunlop Board as the outgo to that sort of hope desire on the part of Congress.

Now as I say, if the party settled their disputes and they abide by the settlement that's an end of the matter for the Board as far as 10 (k) or 8 (b) (4) (D) are concerned.

If the private machinery however breaks down or if there is a settlement but a union fails to respect it then the Board does not go to a 10 (k) proceedings, but it immediately proceeds to the unfair labor practice complaint.

Now here, here in this case of course there was no private arrangement for the settlement of this dispute and so the Board proceeded to the Section 10 (k) hearing and the language of the statue to hear and determine the dispute out of which the alleged unfair labor practice arose.

Now Section 10 (k) does not provide any criteria, does not provide any criteria for the Board to make these determinations and since Section 8 (b) (4) (D) -- since Section 8 (b) (4) (D) is a substantive provision dealing with jurisdictional strikes and disputes under the statue, the Board has looked to Section 8 (b) (4) (D) for the purposes of -- of -- for the purposes of criteria to make its determinations in the Section 10 (k) hearings namely whether or not the assignment of the work was in derogation about orders, certificate within meaning of 8 (b) (4) (D).

Justice Felix Frankfurter: Mr. Manoli, if -- if the jurisdictional dispute that is new, a new situation, I don't know to what extent custody ended but certainly there's a lot of new situation.

Mr. Dominick L. Manoli: Oh yes.

Justice Felix Frankfurter: In fact it may well be as many old situations then you have to have standards other than well it's always been this way.

Mr. Dominick L. Manoli: Yes.

There may be situations where the Board even if it had -- were adopting the rule of court below where the Board could say well we don't think it belongs to either one, because there is no tradition or practice on the part of either, so I don't -- that just leaves them to fight it out I guess among themselves.

Justice Felix Frankfurter: Your difficulty (Inaudible) your emphasis which I get from your argument, your emphasis is the absence of standard --

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: -- provided by the statute.

Mr. Dominick L. Manoli: Yes sir.

Justice Felix Frankfurter: -- for substantive settlement is emphasized by the fact that they have to have standards in what I call new situation, new techniques in building, I mean, new installation etcetera, isn't that true as the practical fact?

Mr. Dominick L. Manoli: Well, there may -- there very well be situations where there is no practice or tradition, you're quite sure, you're quite right and under the decisions of the court below precisely what kind of standards would govern in that situation, I am at a loss.

I don't know what the Court had in mind, but the Court agreed apparently with member Murdock with (Inaudible) and certain cases of the Board where he said why you look to practice and traditions in unions constitutions and -- and the like, but there maybe situations --

Justice Felix Frankfurter: (Voice Overlap) if there is none, you can't look to it.

Mr. Dominick L. Manoli: But there isn't and you can't look to it.

That's right, but the court well I don't know what the court below would say what we had to look to in a situation of that kind.

Justice Hugo L. Black: Probably get both Unions on that, you might well be at this excessive controversy.

Mr. Dominick L. Manoli: Yes.

Chief Justice Earl Warren: Well Mr. Manoli, can we find any place there in the record the -- the policy reason behind the Board's position here as to -- because we are dealing with the matter that's pretty well on balance, is there anything that would indicate why the Court believes this is a better position to take from the -- from the other one?

Mr. Dominick L. Manoli: Your Honor, I think I've attempted to describe but I think it's a very difficult --

Chief Justice Earl Warren: I know but it's -- it isn't in -- I wonder if it's in caption form any place here where we can find it.

Mr. Dominick L. Manoli: Oh in -- in the summary of our argument, in our brief of course in caption form it's in there and I shall spend the next 30 minutes addressing myself to the considerations which I think support the Board's position.

I thought that it was necessary, because there seems to be a rather -- I think that's a bit complicated procedure to explain that to the Court and I've spent a lot of time doing it.

Justice Felix Frankfurter: Are you going to -- are you going to throw out or can you throw out the factor or the possible factor of not (Inaudible) situations.

Mr. Dominick L. Manoli: Well that to be in all -- let me put it this way that I think it would make the Board very unhappy.

It would have to decide -- it would have to decide these disputes on the basis for additional factors or not.

Justice Felix Frankfurter: If -- if the -- if the Board is in let free by the legislation either choice as an allowable choices without pushing the matters one way or the other then the reasons why they would be unhappy might be relevant to the Chief Justice's question.

Mr. Dominick L. Manoli: The -- I think the Board as I will hope to explain as I say in the next 30 minutes, I think there were fairly solid reasons which support the Board's position and I shall address myself to them very shortly.

Let's say Section 10 (k) -- Section 10 (k) does not contain any criteria for the resolution of these disputes.

Whatever criteria there are in the statute the Board has felt are in Section 8 (b) (4) (D).

Section 8 (b) (4) (D) in a sense defines -- defines the -- the area of prescribed jurisdictional disputes and the kind of strikes that the Board was directed -- was directed to enjoin.

Section 8 (b) (4) (D) makes no provision for legitimated -- for legalizing strikes, for legalizing strikes where the union was claiming the assignment of work on the basis of tradition or custom.

It seems to us, it seems to us that if Congress had meant -- had meant to carve out this category from the scope of 8 (b) (4) (D), that it would -- the natural thing would have been for Congress to accept so and neither 8 (b) (4) (D) or Section 10 (k) rather have the Board imported on its own in the Section 10 (k), but the -- but Congress did not do that.

Now, if the substantive provision of the statute 8 (b) (4) (D) does not carve out this category of legalizing strikes where the claim is based upon tradition or custom, if the substantive procedure of the provision of the statue does not do it, then it seems to us it would be demonstrably in Congress for the Board to do so on its own in a Section 10 (k) procedure.

Suppose that the Board, following the decision below were to make an affirmative award based on tradition or custom and that the employer, the employer refused to abide, refused to abide by that kind of an award and the union struck, the union struck to compel the employer to abide that award, the strike would nevertheless be a violation of Section 8 (b) (4) (D), because Section 8 (b) (4) (D) contains no exceptions for strike and support of demand which is bottomed upon tradition or custom.

Moreover whether or not we have an illegal jurisdictional strike depends upon the situation which exists at the time that the strike is called.

There is no provision on the statute, there is no provision on the statute for legalizing these strikes retroactively by virtue of a subsequent Board determination in the Section 10 (k) hearing based upon custom, tradition or practice or the like.

Not only does the decision below lead to this in congruence but I think it also -- it also leads to a very serious incongruities between Section 10 (k) and 8 (b) (4) (D) on the one hand and Section 303 of the Labor Management Relations Act.

Section 303 of the Labor Management Relations Act, as I explained a moment ago, gives to anyone who is injured by one of these jurisdictional strikes the right to sue for damages in the District Court.

Section 303 does not spell out a different offense in Section 8 (b) (4) (D).

It is couched in the same language as 8 (b) (4) (D) and the elements, the elements of the offense and let me add this that all that Section 303 does is add the sanctions of damages to the sanctions of a cease and desist order under the -- of the Board.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Dominick L. Manoli

Chief Justice Earl Warren: You may proceed Mr. Manoli.

Mr. Dominick L. Manoli: May it please the Court.

When the Court arose for the lunch and recess, I was attempting to set forth some of the incongruities which we think that the decision below gives rise to -- particularly in connection with Section 303 of the Labor Management Relations Act.

That Section as I explained gives a right to anyone who has been injured in his business by one of these jurisdictional dispute strikes, the right to bring a suit for damages.

That Section does not create a different right than is created in Section 8 (b) 4 (D) or a different offense and is created in Section 8 (b) (4) (D) but adds the sanctions of a cease and desist order, the sanctions of damages.

And as this Court made clear in the Juneau Spruce case decided some six or seven years ago, this Court made clear in that case, the elements of the offence under 8 (b) (4) (D) and 303 are the same and that prosecution for damages under 303 is in no way dependent upon an antecedent for determination under Section 10 (k).

Under Section 303, as under Section 8 (b) 4 (D), a claim to a disputed work based upon tradition, custom or what have you is irrelevant.

Now, we believe that if the -- that if the offense in -- under Section 303 is established as the statute says is established by showing that the employer's -- by showing that the employer's assignment is not in derogation of a Board certificate or order within the meaning of 8 (b) 4 (D), then tradition and practice are irrelevant to a Section 303 action and if they are irrelevant to a Section 303 action, we believe that they are also irrelevant under 8 (b) 4 (D) as well as Section 10 (k) because --

Justice William J. Brennan: Section 303 action is what -- even if 8 (b) (4) (Inaudible)

Mr. Dominick L. Manoli: That's right, that's right.

Due -- there had been a situation where the Board has found an 8 (b) 4 (D) violation or rather no violation of 8 (b) 4 (D) but a District Court has.

But the Court of -- the -- this Court made clear in the Juneau Spruce case however, that a Section 303 action is not dependent upon a prior board determination in a Section 10 (k) hearing.

Now, if tradition and custom are irrelevant to a 303 action, as I say, we think they are also irrelevant under the provisions of the statute that the Board administers because if it were not so -- if it were not so, you would have the rather startling result that a strike could be illegal under 303 for purposes of awarding damages and yet lawful under the unfair labor practice provisions of the statute.

Decisions below leads not only to this incongruity but it also cuts across, we think -- it also cuts across of what -- one of the most basic policies of the statute, namely the policy against discrimination in employment which encourages or discourages union membership.

Under the statute, an employer has the inherent right to select his employees and make his work assignments.

The principle restriction which a statue imposes upon the exercise of that right is that it shall not be exercised in a discriminatory fashion so as to encourage or discourage union membership.

But the ruling below which would require the Board to award -- award work affirmatively to the members of one union or another under the basis of tradition, custom and the like, would foster through the Section 10 (k) proceedings a circumvention of this policy against discrimination.

Now, let me illustrate.

Suppose that you had an employer whose employees are presently members of or represented by union A and that that employer has obtained a job.

Union B claiming that its members are entitled to this kind of work puts pressure upon him to give its members to -- or puts pressure upon the employer to give the work to his members.

Now, the employer can either discharge his employees and -- and replace them with members of union B or it can give up the job altogether.

In either case, there is discrimination against his employers by reason of their non-membership in union B.

Let me cite one more example.

Often, the jurisdictional disputes pit a union against an -- an unorganized group of employees.

If tradition or custom were to be controlling in a situation like that, the chances are that in -- in most cases, the union would probably prevail as against the unorganized group because the union undoubtedly couldn't make a better showing of tradition or custom or practice in support of its claim than could the unorganized group.

Again, you would have encouragement of the unorganized group to join the union which obtained the -- the work by virtue of its claims based upon tradition or custom or practice.

Justice Hugo L. Black: If that -- if the Board doesn't exercise power to settle this dispute as between them completely, does it leave it unsettled or what happens? Jurisdictional disputes, I have supposed, I -- I remember that they're one of the worst things in connection with labor disputes.

Mr. Dominick L. Manoli: Yes, sir.

Justice Hugo L. Black: Was long time with great effort to find some way to solve it.

That having a -- cases shown into -- that's in the Court every time that they happen, the way they settle it.

Mr. Dominick L. Manoli: Your Honor --

Justice Hugo L. Black: If -- if your action -- if the Board's position is upheld, how is the dispute settled?

Mr. Dominick L. Manoli: Your Honor, I think that there is unanimity among all the members of Congress who passed this statute that jurisdictional disputes were bad and they were against that just as they were against sin but there was quite -- they were divided as to how to reach heaven one might say in how to settle these disputes.

Justice Hugo L. Black: Well now, and could it be --

Mr. Dominick L. Manoli: Now --

Justice Hugo L. Black: What -- could it be possible if they tried to reach heaven by putting in on the Board and the Board has decided that would be heaven for them?[Laughter]

Mr. Dominick L. Manoli: No Your – [Attempt to Laughter] as I -- I shall -- as I shall explain in a moment I'm getting to it.

When we come to look at the legislative history, you will see that while there was -- some of the legislators hope that this would give the Board the power to arbitrate these disputes and settle them once and for all that after the conference committee got through with the Bills and that I will explain this shortly.

After we've -- conference committee got through with the Bills, there was very little left to that at least as we read the legislative history.

That all that was left as we see it, all was left to the Board was simply to determine a Section 10 (k) hearing, whether or not he employer's assignment was in derogation -- was in derogation of a certificate or a -- or an order of the Board which had been issued in a representation or unfair labor practice.

Justice William J. Brennan: Well I get this, Mr. Manoli, isn't the answer to Mr. Justice Black's question that it doesn't settle the jurisdictional dispute.

We get a fight between the no rights of the carpenters, the machinists and the carpenters of the no rights to -- all you decide is that the employer of a 10 (k) proceeding, the employer had the right to assign it to (Inaudible)

Mr. Dominick L. Manoli: That's right.

Justice William J. Brennan: And you don't settle the basic underlying so-called jurisdictional dispute between the machinists and the -- and the carpenters.

Mr. Dominick L. Manoli: That's -- that's correct.

Mr. Justice Black however, suggested that if the Congress meant to have the Board settle that -- and I'm --

Justice Hugo L. Black: I didn't know whether they made it or not, I just recalled the history that many efforts were made to -- and to obtain some ways to dispose of these things and get them settled.

Mr. Dominick L. Manoli: As I say, there was unanimity on the part of Congress that these were bad things but they -- they didn't perhaps choose an adequate method for resolving the basic underlying disputes, though the statute does not afford that kind of solution to this problem.

Now it maybe that this are the kind of a problem that Congress left to take a look again and a -- take a look into, but as we read this statute it does not permit the Board to resolve the underlying jurisdictional dispute between the no rights of the carpenters.

Justice William J. Brennan: Well, how will (Voice Overlap) between the machinist and the carpenters going on for -- of no rights were.

Mr. Dominick L. Manoli: All of these -- all of these arguments have been going out for many, many years.

Justice Felix Frankfurter: (Inaudible) years.

Justice William J. Brennan: (Inaudible) Mr. Justice Frankfurter says (Voice Overlap) --

Mr. Dominick L. Manoli: That's all in their -- their long standing disputes and --

Justice Felix Frankfurter: Mr. Manoli, I think it will make for the orderliness of your argument if I don't interrupt it and now I want to interrupt you, speak into aspects of the legislative history so I hope you'd be able to come that.

Mr. Dominick L. Manoli: I'm turning to that --

Justice Felix Frankfurter: And that I would be chipping away at it because what I'm very curious about is what you tell us as to the representations made by business on the one hand that the chamber of commerce take any position and labor on the other hand because I should be greatly surprised if labor would want that -- wanted -- want -- would want the Wagner Board, your Board, to settle jurisdictional disputes on the merits. I should be greatly surprised if you could -- if professor Cox is quoted as saying that he is free of them, Judge Clark and pull out of there -- out of the record, he does not see it?

Mr. Dominick L. Manoli: Well, professor --

Justice Felix Frankfurter: If however -- if however the CIO would want the Board to settle the jurisdictional disputes.

Mr. Dominick L. Manoli: Well, that's been a question in my mind as to the -- whether he really would want to.

However though, Professor Cox has suggested at this Joint Board, that it can resolve many of the these -- these disputes and --

Justice Felix Frankfurter: Namely -- I mean what --

Justice William J. Brennan: The Dunlop order.

Mr. Dominick L. Manoli: The -- the Dunlop order, they called it --

Justice Felix Frankfurter: But that's a different story.

Mr. Dominick L. Manoli: Pardon me?

Justice Felix Frankfurter: That's a different story.

Mr. Dominick L. Manoli: Yes.

Justice Felix Frankfurter: They have a sharing.

They're involved -- they are part of that.

Mr. Dominick L. Manoli: That's right.

I'm not so sure whether to either the unions or employers who would be willing to have the Board resolve these disputes --

Justice Felix Frankfurter: Whether on the orders, whether there was any spokesman of the either side, if I may call them side, who indicated the statement in mind of these organized bodies.

Mr. Dominick L. Manoli: I don't have any, Your Honor but here's what I do have on the legislative history.

The 1947 House Bill contained a provision which prohibited jurisdictional disputes -- jurisdictional strikes over assignment of works -- of work.

It did not contain any provision comparable to the Section 10 (k) provision.

The Senate Bill -- the Senate Bill did contain a Section 10 (k) provision which had been proposed by Senator Morse but that differs however from the present provision of the Bill in that -- in that Section 10 (k) as passed by the Senate, required the Board or an arbitrator appointed by the Board to hear and determine the dispute.

And Senator Morse said that this made for compulsory arbitration of these jurisdictional disputes.

Now, when the thing went to conference -- when the -- when this Bill went to conference, the conference deleted -- deleted from the Senate Bill, the provision empowering the Board to appoint an arbitrator to determine these disputes.

The conference bill came back to the Senate and Senator Morse complained of the deletion saying that the -- the result of the deletion would be to put the Board into the arbitration business, a kind of business for -- to which the Board had no special competence and for which these procedures were ill-suited.

Now, it is significant to know that after the conference bill was reported out and after Senator Morse had made these objections, the amendment of -- to carving out his -- his suggestions that none of the proponents of the conference bill shared the view of Senator Mores that this would put the Board into the arbitration business.

Now, I think from this legislative history, you can draw two inferences.

The Court undoubtedly will make its own appraisal of the -- of the legislative history but as we see it, the legislative history either means that the Board was put into the arbitration business or -- or that Congress, realizing the impact of putting the Board into this form of compulsory arbitration, realizing the impact of that sort of thing upon Section 303, upon the provisions prohibiting discriminations by reason of union membership, realizing those things shied away, shied away from this compulsory arbitration and left the Board to move in an area in which it had some familiarity in which it had some competence, namely whether the assignment was in derogation of a bargaining cert -- of a certificate or order within the meeting of the Section 8 (b) (4) (D).

Justice Felix Frankfurter: (Inaudible) what Senator Morse's position was?

You -- I heard that you've said that he was -- that this puts the Board into --

Mr. Dominick L. Manoli: In the arbitration.

Justice Felix Frankfurter: -- in the arbitration and therefore, he was opposed to or was he there to come for it?

Mr. Dominick L. Manoli: he -- he was opposed to having that part of this original amendment deleted, a part which empowered the Board to appoint an arbitrator.

Justice William J. Brennan: Who assumingly would be specially confident perhaps in --

Mr. Dominick L. Manoli: That's right.

That's right.

Justice William J. Brennan: -- the carrier.

Mr. Dominick L. Manoli: The Morse -- the Morse Bill said or the Morse amendment rather which the Senate passed said, "Either the Board or an arbitrator appointed by the Board will determine these disputes.

In the conference, the part about or appointing an arbitrator was knocked out and he complained about it that it would put the Board -- that the result would be to put the Board in this unfamiliar area of arbitrating disputes.

Justice Felix Frankfurter: Well, since it cut out the appointment of an arbitrator, well then, I should think -- could deduce from that, from Senator Morse's position that he wanted to put the Board into -- that that the result would be to put the Board -- make the Board a -- an arbitrator, compulsory arbitrator against his wisdom that it should be so.

Mr. Dominick L. Manoli: Well, Your Honor, Senator Morse was the only one who said that and as I say none of the proponents of the conference bill agreed at least vocally in Congress, agreed that this was the interpretation to be put --

Justice Felix Frankfurter: Well, he was the chairman of the committee?

Mr. Dominick L. Manoli: No, sir.

Justice Felix Frankfurter: He was there to challenge, did the committee said anything.

Mr. Dominick L. Manoli: There was nothing said about this.

They just made this -- this deletion.

The conference -- the conference report says "We have adopted the Senate" --

Justice Felix Frankfurter: Mr. Manoli, before you get to the conference report when the bill was reported out by the labor committee of the Senate, Committee on Labor and Education Boards.

Was anything he said on that subject?

On this, on 10 --

Mr. Dominick L. Manoli: What was said on it that these matters would be arbitrated by the Board or an arbitrator appointed by the Board.

That's what -- that was the proposal.

Senator Morse said that it was a form of compulsory arbitration and it would be done, either by the Board or by an arbitrator appointed, presumably, the Board and invert it --

Justice Felix Frankfurter: If you cut out --

Mr. Dominick L. Manoli: -- appoint the arbitrator.

Justice Felix Frankfurter: If -- if you cut out an appointed arbitrator, if that was cut out why doesn't that lead the purpose just the Board to do the job.

Mr. Dominick L. Manoli: No, Your Honor.

For this reason that one can no longer be sure that that's what the conference committee intended because in conference -- in conference --

Justice Felix Frankfurter: Well, what was this section in the House Bill?

Mr. Dominick L. Manoli: Is -- the -- the House Bill had a broad provision prohibiting all jurisdictional dispute strikes.

It had no Section 10 (k).

Justice Felix Frankfurter: That's what I'm --

Mr. Dominick L. Manoli: That's the reason, the only thing like it.

Justice Felix Frankfurter: Well, that had to be handed out between the House and the Senate conferees.

Mr. Dominick L. Manoli: That's right.

That's right.

Justice Felix Frankfurter: And the -- and the -- what light have we besides this thing of Morse's.

Mr. Dominick L. Manoli: We have nothing else -- nothing else but I do want to call your attention to this.

That as I say, we think that the more plausible inference is that Congress shied away from this form of compulsory arbitration because Senator Taft -- Senator Taft gave assurances -- gave assurances that section 10 (k) and 8 (b) 4 (D) were not to afford avenues of escape to either employers or to unions from the restrictions of the statute against discrimination and employment.

Justice Felix Frankfurter: Did he make any explicit comment on the argument of compulsory arbitration?

Mr. Dominick L. Manoli: No, sir.

Justice Felix Frankfurter: Can -- the committee, was it?

Mr. Dominick L. Manoli: I don't know of any --

Justice Felix Frankfurter: Except this --

Mr. Dominick L. Manoli: I don't know if there are any comments --

Justice Felix Frankfurter: But this was his Bill, wasn't it?

Mr. Dominick L. Manoli: Yes it was but he made -- I don't know of any comment other than this.

There were suggestions that as the Bill came out of conference, it was suggested that it would permit the employer -- it would permit the employer by giving work to unorganized class or groups.

It would permit the employer to under mind -- undermine the unions.

Justice Felix Frankfurter: But who -- who --

Mr. Dominick L. Manoli: And in his answer to that -- in his answer to that, he said that Section 8 (b) (4) (D) and 10 (k) were not to afford an escape from the restrictions against discrimination.

And we say Your Honor, if I may finish it, we say that if the Board is required to arbitrate these disputes in 10 (k) on the basis of tradition, custom or practice, the effect would be to afford the unions and the employers an escape from the -- these restrictions against -- against discrimination.

Justice Felix Frankfurter: May I -- may I ask you who else dealt with Senator Morse's argument that this constituted compulsory arbitration?

Who said something about arbitration among the Senators at all?

Mr. Dominick L. Manoli: Oh, there is Senator Ellender had made some remarks along those lines but this was before conference, before conference, before there was --

Justice Hugo L. Black: What did he say?

Mr. Dominick L. Manoli: Sir?

Justice Hugo L. Black: What did he say?

Mr. Dominick L. Manoli: He agreed -- he agreed with Senator -- Senator Morse that the Bill as passed by the Senate would provide for a form of compulsory arbitration.

Justice Hugo L. Black: Was for it or?

Mr. Dominick L. Manoli: He was for it.

He was for it but when it came out of conference -- when it came out of conference as I say, Senator Morse was the only one who -- who was complaining about the deletion of the arbitrator and attributed to the bill as it came out of conference of -- the Board in the arbitration business.

There are two loose things, if I may wind them up, Your Honor and one is an answer to Senator -- Mr. Justice Stewart's question.

In 1949, when there were hearings before -- when the Thomas Bill was passed by the Senate which as I say would have overruled the Board's interpretation of Section 10 (k).

I wanted to make clear that by the time that Bill was passed by the Senate and that died in the House Committee, the Board had already issued its three initial decisions in this area.

So if the Board's position was well known in 1949 when Congress -- when the Senate passed the Thomas Bill which was -- I say if it had passed that, the House would have overruled the Board's interpretation of Section 10 (k) and -- what -- my time is up.

Chief Justice Earl Warren: Mr. Silagi.

Argument of Robert Silagi

Mr. Robert Silagi: Mr. Chief Justice Warren and may it please the Court.

In the hope of presenting a better argument to the Court, Mr. Sherman and I will divide our time.

I will devote my time to a analysis of what we think is the affirmative side of our case, namely the interrelation of Section 8 (b) (4) (D) and Section 10 (k).

The legislative history of the -- of the statute, the applicable rules of the Board and the practical interpretation such as the Board says supports its construction.

Mr. Sherman will devote himself to a defensive kind of aspect of our case, namely the relationship of between Section 8 (b) 4 (D) and Section 303 (a), namely the situation which arises in the Juneau Spruce-type situation where an employer sues a labor union for engaging in a jurisdictional strike.

Mr. Sherman will also cover that aspect of the -- of our case which deals with the interrelationship of 8 (b) (4) (D) and 8 (a) (3) and 8 (b) (2) in a kind of situation which arises according to the Board's theory which gives rise to a discriminatory hire if the Board were to follow the respondent's theory of this case.

At the outset --

Justice Hugo L. Black: If -- if you can discuss the legislative history --

Mr. Robert Silagi: Yes sir, I shall.

I --

Justice Hugo L. Black: -- I presume it would -- would it throw you out anyway if you -- mention that first?

Mr. Robert Silagi: Yes.

I'd be very happy to.

Justice Hugo L. Black: That would be just -- I was following what the dispute --

Mr. Robert Silagi: I think the -- the genesis of -- of this particular Section of the Act arises in Senator Morse's experience as a member of the War Labor Board.

At his suggestion, the War Labor Board enacted as policy the requirement that where there was a jurisdictional dispute between two labor unions, the parties were given 24 hours to resolve that dispute on a private voluntary basis and if they did not, then they were required to submit to arbitration.

And of course, the dispute itself was arbitrated and actual determination was made --

Justice Hugo L. Black: On the merits?

Mr. Robert Silagi: Yes, sir and that should --

Justice Hugo L. Black: Though there's -- an award could be made of the job?

Mr. Robert Silagi: That's correct sir.

Now --

Justice Felix Frankfurter: During the war.

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: During the war.

Mr. Robert Silagi: That's correct sir.

Now, when Senator Morse introduced his bill into the Senate, he embodied the same concept into his bill requiring, first, voluntary settlement within a period of 10 days and then if the parties could not resolved their own dispute, then the Board was empowered to determine the dispute out of which the unfair labor practice arose, namely this very jurisdictional dispute.

He also provided that arbitration was to be a -- a part of his bill on the theory that private arbitrators had a greater expertise in areas of this kind than the Board itself had.

As has been related here, the House adopted a rather unsophisticated approach to this problem and they imposed a flat ban on jurisdictional strikes.

The Senate adopted Senator Morse's ideas on the subject and interestingly, they not only said that the Board is empowered to hear and determine the jurisdictional dispute out of which the unfair labor practice shall have arisen but they added the words "and directed" so that there was no choice on the part -- part of the Board to hear or not to hear a jurisdictional dispute.

They were compelled to under the terms of Senator Morse's bill which then was passed by the Senate and the same arbitration -- private arbitration provisions were retained in the bill.

Now, the conference committee, to whom this was referred, followed the Senate Bill but it did two things.

It widened the scope of the jurisdictional dispute previously under the Morse bill.

It had been limited to two unions and now, it was broadened to encompass class, craft etcetera and it eliminated from Section 10 (k) the provision for private arbitration.

Now, in answer to the question --

Justice Hugo L. Black: What did that leave -- what did that leave when they eliminated the provisions for private arbitration?

Mr. Robert Silagi: It compelled the Board to act as the arbitrator.

Now, the -- the question has been asked earlier of Mr. Manoli who was in favor of this aside from Senator Morse and I have -- Mr. Manoli answered that Senator Ellender spoke in favor of this concept.

In addition to which Senator Murray also stated that Section 10 (k) required the Board itself to arbitrate the work task jurisdictional disputes.

Justice Hugo L. Black: Was he the chairman at that time?

Mr. Robert Silagi: I believe that he was not, sir.

I (Voice Overlap) --

Justice Hugo L. Black: Who was the chairman?

Justice Felix Frankfurter: Senator Taft was.

Mr. Robert Silagi: Senator Taft was.

Justice Felix Frankfurter: At that time, Senator Taft.

Mr. Robert Silagi: Yes sir.

Now, that this is the -- the (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap)

Justice Potter Stewart: And how that was -- excuse me.

Justice Felix Frankfurter: So that these to a minority view both Senator Ellender and Senator Murray's minority views.

Mr. Robert Silagi: Well, it is the minority --

Justice Felix Frankfurter: I beg your pardon.

They are viewed by minority members of the committee.

Mr. Robert Silagi: That is correct.

Nevertheless --

Justice Potter Stewart: May I -- just a moment --

Mr. Robert Silagi: Yes, sir.

Justice Potter Stewart: May I -- were Senator Murray's views expressed before the -- before the conference between the House and the Senate (Voice Overlap)

Mr. Robert Silagi: They were expressed at the time the conference committee became the Act.

Justice Felix Frankfurter: Became what?

Mr. Robert Silagi: The -- the -- at the time -- at the time the conference committee bill became the Act, this is a discussion on the -- on the --

Justice Felix Frankfurter: You mean when the conference report came before the Senate, they addressed themselves for the -- to the problem which came out of the conference committee?

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: Was he, Senator Murray, a member of the conference committee?

Mr. Robert Silagi: Yes, sir, he was.

Justice Potter Stewart: Because so far as the -- who in the Senate was -- before the original idea of having a -- of giving the Board power to appoint arbitrators, the answer is that a majority of the Senate was.

Mr. Robert Silagi: That is correct.

Justice Potter Stewart: I mean has to.

Mr. Robert Silagi: Yes.

Now these very same ideas were borne out by the veto message of -- of President Truman.

President Truman objected to this Section of the -- of the Act on the theory that in order to invoke the processes of the Labor Board, it would be necessary that the union strike.

Then he went on to say, "This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes of or boycotts.

So it was quite clear at least in President Truman's mind that it was the Board itself that was going to make the determination as an arbitrator.

Later on, under the discussion and the debate on the veto message, nobody, whether in favor or opposed to this bill had any doubt about the duty of the Board to settle the work allocation which was in dispute.

And the fact that the -- the -- there had been a deletion of the provision to require private arbitration, did not in itself change any of the substantive functions of the Board requiring a Board to make this arbitration award.

Justice Felix Frankfurter: Was the President Truman's veto -- would this authenticate an item included in President Truman's veto message?

Mr. Robert Silagi: Yes, sir.

Justice Felix Frankfurter: What did he say about it?

Mr. Robert Silagi: Well, this is -- this was his objection.

The fact that in order to invoke the processes of the Board in order to settle a jurisdictional dispute, the union was first required to engage in a jurisdictional dispute which everyone agreed was wrong or something that had to be avoided.

Apparently, the theory was that --

Justice Felix Frankfurter: -- I don't follow that because it grew out of the jurisdictional event.

You are dealing with ab initio with the jurisdictional route.

Mr. Robert Silagi: That's correct sir.

The President's view on the matter, as I interpret them, would have required that there be some other kind of procedure to get before the Board itself without requiring the Union to engage in a strike such as you have a -- a Section 9 petition which permits the Board to make a determination or representation of matters.

I assume the President would have preferred that a similar kind of procedure be enacted in to the law and this is what he objected to, the fact that it had become --

Justice William J. Brennan: Well, it -- would you mind reading that -- those words of his again Mr. Silagi, from the veto message?

Mr. Robert Silagi: Yes.

Justice William J. Brennan: I didn't quite get that impression if it from what you read us.

Mr. Robert Silagi: It says, "This peculiar situation, referring back to the fact that the unions would have to strike in order to invoke the settlement of jurisdictional dispute.

Justice Felix Frankfurter: Why would they have to?

Mr. Robert Silagi: This is the only way you can get before the Board, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Robert Silagi: On the 10 (k), the only way you can get the before the Board is if someone, an employer, or a union files a charge of unfair labor practice pursuant to Section 8 (b) (4) (D).

There is no other way of getting before the Board.

Unknown Speaker: But -- but what -- I still think of settling without striking.

You settle it by obedience.

Mr. Robert Silagi: Well --

Unknown Speaker: Or they could settle it to a voluntary arrangement, either see the unions.

Mr. Robert Silagi: May I refer then, Your Honor, to the --

Justice William J. Brennan: Well, would mind just reading me that language in the reprinted [Laughter]

Mr. Robert Silagi: Yes, certainly.

"This peculiar situation arises from the fact that the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts.

Justice William J. Brennan: Well, now, is that anything more than just the very language of Section 10 (k) itself?

How does that advance?

Mr. Robert Silagi: I think it --

Justice William J. Brennan: Or that does not, it was intended that they should be --

Mr. Robert Silagi: I think this --

Justice William J. Brennan: Or it should have the power to arbitrate.

Mr. Robert Silagi: I think this indicates to the President's mind that the Board itself was given the authority to arbitrate.

Justice William J. Brennan: Isn't that the very language we have to construe here it to determine jurisdictional disputes?

Mr. Robert Silagi: Yes, it is.

In answer to --

Justice Hugo L. Black: Could you read -- the Senate to me the preceding letter in the veto?

Mr. Robert Silagi: I'm sorry.

Justice Hugo L. Black: You have it here, do you not?

It's on page 19 of your brief, it's immediately preceding to the one you've just read.

Mr. Robert Silagi: Yes.

Well if I may read the -- the quotation again, President Truman said, "The bill would force unions to strike or to boycott if they wish to have a jurisdictional dispute settled by the National Labor Relations Board.

This peculiar situation results from the fact, the Board is given authority to determine jurisdictional disputes over assignment of work only after such disputes have been converted into strikes or boycotts."

Justice Felix Frankfurter: But that's a -- as Mr. Manoli suggested that the Board's construction settles this jurisdictional dispute before it makes the employer's selection with determinative things.

Mr. Robert Silagi: Well, this is of course what we disagree with.

Well, I'm -- and may I --

Justice Felix Frankfurter: The thing is that -- that if we construe it, the Board's role would settle the jurisdictional strike --

Mr. Robert Silagi: No, sir.

Justice Felix Frankfurter: -- jurisdiction controversy.

Mr. Robert Silagi: No, sir.

I -- may I refer to the peculiar facts of this case to show you why and perhaps to -- to indicate the just -- Mr. Justice Whittaker why -- what the Board did in this case did not determine the dispute.

Here was a situation where two unions, the stagehands union and the technicians union, both having contracts by -- for the instillation and operation of a certain work task, namely lighting equipment.

I might say that only the technicians union had a certification.

The unions involved had each requested CBS to negotiate into their contracts a specific clause which would cover this disputed work.

CBS refused to do this on the theory that it could not make an affirmative award of jurisdiction to either of the competing unions in the face of conflicting claims.

This is all set forth in the record.

Now, you might ask, if this is the situation and if the technicians union has a certification, why then did not the -- the technicians union go to the Labor Board and ask for a clarification of its certification?

In the Board's brief, they quote Senator Taft.

They're saying this is a permissible thing to do.

The answer to that is that Senator Taft was -- was wrong.

It just can't be done and the Board itself has on many occasions stated that a representation preceding any clarification of a representation certification is not the proper method to settle a jurisdictional dispute.

So the only way, the parties in this case, and the only way the -- the technicians union could get its dispute settled is by striking.

Now, I should like to address myself --

Justice Felix Frankfurter: Well, after all, we've all known about outlaw strikes.

It doesn't -- no modes of settling conflict between two people.

Is that absolute guarantee that that was the -- the determination of the disputes by process of laws, the call will settle that, but in the normal instances, if -- if this is thrown back upon the employer and it makes a choice and the union chose -- does not chooses and then refuses to abide by it, that's a -- just one of the -- disregards of what the legal process is.

Mr. Robert Silagi: Well, in this case, CBS did not make a choice or it made an inconsistent choice.

Justice Felix Frankfurter: Well, I'm – I understand that.

In this case, they -- they didn't make a choice.

That's not the normal instance -- normally if -- is that the normal situation?

Do you think this is a typical situation?

Mr. Robert Silagi: Yes, sir.

I think this is a typical situation in a case where both unions have contracts and the employer either is completely neutral and refuses to make a -- a choice or as in this particular case, he does make a choice but he does it inconsistently as the Court of Appeals in the Second Circuit pointed out in its decision and this is contained in our record while we were in the very midst of handling this case before the National Labor Relations Board on the Section 10 (k) proceeding and in the midst of the Section 8 (b) (4) (D) hearing, CBS made a -- an assignment of the identical work in a different manner.

This was in relation to the -- to the show which occurred on board the Steamship United States where --

Justice Felix Frankfurter: In -- in short, it settled a dispute of -- by -- at least -- by deciding it wasn't an either or but there was (Inaudible), isn't that right?

Mr. Robert Silagi: Well, there are only two unions involved here which could possibly have done this work in -- and CBS on one hand in 1957, decided that the work belonged to the technicians and then in 1958, in the identical situation, decided that it belonged to --

Justice William J. Brennan: Decided -- decided to belong to be decided that this is one way to keep peace.

One job for one and the other jobs (Voice Overlap)

Mr. Robert Silagi: Perhaps it kept a scorecard but this is not the way to keep the peace because this doesn't settle any assignment.

Justice William J. Brennan: You think in this instance?

Mr. Robert Silagi: No, no, sir.

Justice Charles E. Whittaker: Mr. Silagi.

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Please tell me if there had been no appeal from the Board's order here or the Court of Appeals had affirmed before it reversed it, would that have settled the dispute?

Mr. Robert Silagi: I don't think it would have settled the dispute.

Justice Charles E. Whittaker: I mean nevertheless, than it's settled.

Let me use the language of the statute, determine the dispute?

Mr. Robert Silagi: No, sir.

I don't think so.

Obviously --

Justice Charles E. Whittaker: What -- what dispute would have -- what part of the dispute would – thus has not been determined?

Mr. Robert Silagi: The underlying jurisdictional dispute is the home this work belonged.

Justice Charles E. Whittaker: Well, that's another dispute isn't it?

Isn't that another dispute?

Mr. Robert Silagi: Well what --

Justice Charles E. Whittaker: The dispute that was before the Board was whether you were entitled to this work.

The employer said no, you said yes, isn't that right?

Wouldn't that be a dispute?

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Now, was that dispute determined by this order of the Board?

Mr. Robert Silagi: The Board pursuant to this --

Justice Charles E. Whittaker: Assume there had been no appeal?

Mr. Robert Silagi: The Board's order merely determined in effect from the Section 10 (k) order or the decision and determination, simply determined that the technicians union had violated Section 8 (b) (4) (D) which was not the proper thing for it to determine.

The proper thing for the Board to determine in Section 10 (k) was a determination of the jurisdictional dispute itself, namely to whom does this work alone.

Justice Charles E. Whittaker: Well, on that -- that that maybe to engraft a new question on to the original question as to whom the -- the work belonged.

Was not the dispute, existing between CBS and the electrical workers, the latter claiming the work and CBS denying that they were entitled to it, wasn't that the dispute?

Mr. Robert Silagi: Yes, sir.

Justice Charles E. Whittaker: Now then, the electricity -- electricians were ruled not to be entitled to it.

Now, if that was the final judgment, would that not determine the dispute?

There maybe other disputes but not that one.

Mr. Robert Silagi: In that limited sense, I think that -- that you're right.

It would've determined that very limited dispute.

Justice Charles E. Whittaker: Well then, doesn't that discharge fully the duties of the Board under 10 (k)?

Mr. Robert Silagi: No, sir.

I -- I respectfully disagree.

Justice Charles E. Whittaker: Well, -- well I am seeking enlighten.

I don't know but I'm just asking you.

Mr. Robert Silagi: I think the Board itself has shed some light on this problem in its very first decision involving Section 10 (k) in the Moore Dry Dock Company case where it is said -- describing the functions -- describing its -- describing its own functions under Section 10 (k) that "this proceeding being under Section 10 (k) has as its sole object, the determination of the dispute.

It is not an unfair labor practice proceeding at this stage.

The Act purposefully postponed that to a subsequent thing.

It is not a representation proceeding requiring certification of representatives.

There is nothing in Section 10 (k) which either expressly or by implication, requires the Board to follow the procedure set forth in Section 9.

Rather, it is a proceeding intended for the resolution of the disputes arising under Section 8 (b) (4) (D) as the language of Section 10 (k) plainly states.

And in that case, the very first case which the Board decided, the Board did what the respondent claimed it should do, namely, it made an award.

And the Board said that the international association does not entitle to require the employer to assign machinists to its members and the Board went on to say that the United Steel Workers was entitled to have the employer assign machinists -- machinist work to its members.

Unknown Speaker: (Inaudible) 49 decision?

Mr. Robert Silagi: Yes, sir.

That was in March 1949 and this occurred six days prior to the Thomas Bill which is mentioned before.

So that at that time, Congress was considering the Thomas Bill, the only decision which it had from the Board, was one which is consistent with what the respondent believes is the proper determination.

Now, the Board finds itself, in our opinion, in a dilemma with respect to contracts.

It is obvious that nothing in the Act relates to contracts per se.

The Board is simply entitled to make a determination or the -- the exception clause rather besides that it is an unfair labor practice for a jurisdictional dispute to occur unless there is a Board order or certification.

Now, in order to come out with the right result, the Board has adopted incorrect reasoning we believe and it says that in a situation such as arises in the Winslow Bros. and Smith Company case where there are two unions involved, each having contracts then in that kind of a situation, if the strike occurs and there's a contract to support it then it too becomes a part of the unless clause.

Obviously, this is a piece of administrative reply act which finds no warrant in the -- in the statute itself, but the Board is compelled to adopt that kind of a position, it has no choice and this is what it has done.

I should like to address myself for just a moment or two to the Board rules and regulations covering this aspect and this I think will shed light on what was a contemporaneous construction at the time the 1947 Act was passed and to also show what the Board felt.

The Board's brief recites the fact that its contemporaneous construction and consistent construction has been in a manner which is now says is the correct implication.

But nevertheless, back in 1947 when the Taft-Hartley Act was fresh in everyone's mind, the Board did adopt a regulation, Section 102.73 which you will find in the respondent's brief at page 8 (a) and I shall quote only the salient words.

Justice Potter Stewart: What page is that?

The --

Mr. Robert Silagi: 8 (a) of the appendix, sir.

Justice Potter Stewart: Oh, alright.

Mr. Robert Silagi: The Board regulation reads as follows, "Upon the close of the hearing, the Board shall proceed to certify the labor organization for the particular trade, craft or class of employees as the case may be which shall perform the particular work tasks in issue or to make other disposition of the matter."

We think this is quite clear on its face as to what the Board construed its own powers and duties to be.

But it if -- if it is not sufficiently clear then I ask you turn to the following page 10 (a) wherein the Board recites its statement of procedure explaining the very same Section of the Act.

This is found at the bottom of the page, Section 101.30 and I will read only the salient words again.

"The Board then considers the evidence taken at the hearing and the hearing officer's analysis together with any briefs that may be filed and the oral argument if any and it shows that certification of the labor organization or the particular trade, craft or class of employees which shall perform the particular work tasks in issue."

It is significant that in the statement of procedure, the Board even omits the language which is contained in its rule which says, "To make other disposition of the matter," and I think it's quite clear from both the rule and from its own statement of procedure that at the time this statute was enacted, the Board itself felt that it had a -- an -- an obligation to make an affirmative determination with respect to a jurisdictional dispute.

Justice John M. Harlan: Is there any other Court of Appeals or District Courts besides the Fifth Circuit (Inaudible)

Mr. Robert Silagi: No, sir.

I know of none.

Justice John M. Harlan: That's the only case?

Mr. Robert Silagi: The Second Circuit --

Justice John M. Harlan: Second --

Mr. Robert Silagi: -- Third Circuit and the Seventh Circuit have ruled contrary.

Justice John M. Harlan: Has the District Courts (Inaudible)

Mr. Robert Silagi: The District Courts helped get into this (Voice Overlap).

Thank you very much, I shall now ask Mr. Sherman to continue.

Argument of Louis Sherman

Mr. Louis Sherman: If it please the Court.

I would like to touch on a few small items that became involved earlier; first, the matter of terminologies.

I think the word dispute has to be contrasted with the words unfair labor practice.

Section 8 (b) (4) (D) makes it an unfair labor practice and I refer to page 6 (a) of our brief and I'll skip over to duplicating words engage in a strike for the purpose of forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class rather than the employees in the labor organization trade.

That is the unfair labor practice.

Then there is the dispute which is referred to in Section 10 (k) out of which such unfair labor practice shall have arisen.

Now it is our feeling, is that in this case, the act of the local union of the IBW in resisting the employer's assignment would come, if it all, under the unfair labor practice section and that the word dispute is a dispute between the IBW on the one hand and the IA on the other, the international --

Justice William J. Brennan: May I ask, Mr. Sherman, to the definition of the word dispute.

I mentioned earlier the historical fight between carpenters and machinists have no right.

Now, the dispute in that sense, in other words, this has been a -- this has been a controversy gone on for decades.

Is it your thought that in an action where the carpenters and the machinists might be in controversy with a particular employer that it was contemplated that the Board resolved that historical dispute over middle right work, so that it will inclusive upon both unions thereafter?

Mr. Louis Sherman: Your Honor, that is correct.

In fact, it will be recalled that in the process of passing this Bill -- to begin with, labor did not appear at the hearings.

I don't think there was any testimony by any of the leaders of the labor organizations.

As I recall it, they took their hands off added to the respect to this matter.

There was a good deal of evidence, however, with respect to the controversy between -- I believe it was the carpenters and laborers in New Jersey where a very large scale jurisdictional dispute was then going on.

And as a matter of fact, the employers were coming to watch them at that time with a cry to somebody or to settle this and there was nobody to settle it and there was of course a complete stoppage of work.

Now, then that is dispute we think --

Justice William J. Brennan: I mean that's -- that's a rather far reaching is it Mr. Sherman?

In other words, the basic underlying controversy between two unions, entirely independent of the employer would be resolved for the two unions nationally and without regard to the employer.

Mr. Louis Sherman: Well, Your Honor, we're not saying that.

We think the employer would have a part in the resolution of the dispute if he chose to do so.

We believe that the only jurisdictional dispute there can be is the dispute involving the jurisdiction of unions, There is no jurisdiction as between the employer and the --

Justice William J. Brennan: In other words, Mr. Sherman, what -- what I'm trying to get at is this.

This controversy -- again, I go back to no rights dispute, arises where these two unions may be in the same plant and many sections in the country and there maybe a -- a dispute in a particular plant over no rights dispute.

Now, what I'm trying to get to is that it's your view that the Board is required by 10 (k) to resolve in resolving the dispute in the particular plant, the whole controversy between the two unions everywhere?

Mr. Louis Sherman: No, You Honor.

We do not say that.

Justice William J. Brennan: And so that they don't resolve -- they don't resolve that which is to say then than a no rights dispute between the two unions, would come up again at another plant and the Board have to go through this all over again?

Mr. Louis Sherman: Well, this of course is exactly the same thing we have today under the Joint Board.

We have job decisions as distinguished from national decisions.

Conceive the situation where there might have been a national decision under the Joint Board, under the National Labor Relations Act.

Justice William J. Brennan: Well of course, the difficulty with the Joint Board arrangement is that by contract, is it?

That's by agreement (Voice Overlap) --

Mr. Louis Sherman: Yes.

But I'm trying to explain that even in connection with disputes of that sort, there is this distinct new job decisions and national decisions and I may say there are no national decisions, there are job decisions.

From a practical point of view presumably this would happen here too.

Now, actually, going back again for a moment to legislative history, it is true that we're talking about minority views but there's also a fact that in this particular part of the legislation and I think it is somewhat unsophisticated to talk about majority and minority, when the Congress came in that session, there had been, as you may recall, the adoption of the case, bill and veto thereof and a great wave of public opinion, we have to face that now. And the President of the Unite States, Mr. Truman, in his message does not say, "No labor legislation."

He said, "Yes" at some labor legislation.

Now, one of the things that he proposed was that legislation be enacted with respect to this problem of jurisdictional disputes.

So therefore, it is no accident.

Justice Felix Frankfurter: And what did he propose?

What did he -- in his message to Congress, what was he ready to sign on jurisdictional dispute?

Mr. Louis Sherman: Well, Your Honor, as I recall it, it was not too specific.

Justice Felix Frankfurter: Alright.

That's the point about all this business.

Mr. Louis Sherman: Yes.

Justice Felix Frankfurter: Let me put to you --

Mr. Louis Sherman: Well --

Justice Felix Frankfurter: I have now examined in the legislative history hastily and therefore -- and satisfactorily but this is what I get out of it.

That undoubtedly, the majority brought in a provision to settle jurisdictional controversies by arbitration and placed reliance on an expert arbitrator, not the Board itself.

The minority consisting, you say there was no spokesman for labor, there were no labor spokesman but there was spokesman for labor because of independency, Thomas of Utah, Maria of Montana and Pepper of Florida did express on the whole what they thought was the right way to deal with labor.

Mr. Louis Sherman: You Honor, I was only referring to testimony of the Court.

Justice Felix Frankfurter: Now, they said the minority's attack on the majority's bill was on a broad scope.

They said that so many provisions in your proposal that makes against the desirable trend and what was the desirable trend which case or this deals -- made in (Inaudible).

It was undue intervention by government and the Board in particular into labor controversies.

So what I get out of this in general attitude was that there was a specific provision for arbitration through arbitrators, to individual arbitrators.

The minority opposed all kinds of intrusion of that sort.

They opposed every aspect of settlement by -- of jurisdictional controversies through arbitration.

The thing don't -- then goes into conference and out of conference comes an excision, a deletion of the right or part of the arbitration business, namely appointment of private arbit -- of -- of expert arbitrators and we have no light at all as to the meaning of what was left except it was for the courts to determine.

I think that that -- that's right out of the reading of that legislative history.

Mr. Louis Sherman: I think that in this one area, there had been an acceptance on the part of the President and on the part of the Senators in the Committee who were favorable to labor of a necessity for doing something.

Justice Felix Frankfurter: I find no such reference in the minority report and I've read it.

Mr. Louis Sherman: Because they were satisfied, I believe, with the majority's action.

Justice Felix Frankfurter: But then that's the whole philosophy of the majority --

Mr. Louis Sherman: In generality.

Justice Felix Frankfurter: -- in taking over interferences with what should be left to the free fighting of labor.

Mr. Louis Sherman: I think Your Honor will find however that in this regard, with respect to the handling of jurisdictional disputes, they were faced, however, with a different problem.

Justice Felix Frankfurter: I may find it --

Mr. Louis Sherman: There was --

Justice Felix Frankfurter: -- but I don't find that in the minority report.

Mr. Louis Sherman: No you will not because the majority report stated exactly what they wanted to have happened because the majority committee report S.1126 as reported, contained the very provisions that we're talking about.

In other words, arbitrators -- and to hear and determine dispute power of the National Labor Relations Board and when it was passed by the Senate, it contained those very same provisions.

Justice Felix Frankfurter: And as to that, there wouldn't be any -- there wouldn't be any doubt as to what it meant, I think.

What I'm suggesting is that they cut the heart out of it in conference.

Mr. Louis Sherman: Well, Your Honor, I think the issue is whether the deletion of the authority to appoint arbitrators cut the heart out of it in substance and changed the entire picture of 10 (k) or whether on the contrary, all it meant was that an agency for decisions, that is arbitrators appointed by the Board, would not be available and the Board would continue with the task which formerly would have been done at the option of the Board, either by the Board or by the arbitrators --

Justice Felix Frankfurter: You'll have to --

Mr. Louis Sherman: -- and not because --

Justice Felix Frankfurter: You'll have to convince me and others will have to convince me to that.

When they eliminated an effective mode of arbitration, they retained an ineffective, in fact, undesirable mode of arbitration.

Mr. Louis Sherman: This of course is exactly what was said contemporaneously by Senator Morse.

In other words, he thought --

Justice Felix Frankfurter: Senator who?

Mr. Louis Sherman: -- that -- Senator Morse and he is important in this because it was his original bill, S.858, which put in these provisions.

As a matter of fact, 10 (k) was written by him as 6 (k) of his bill.

It must be remembered also, I believe, that the really rubbed attitude on the jurisdictional dispute or strike came from the House side, where they would have put down a complete ban against jurisdictional strikes or stoppages for any reasons.

In other words, this process of voluntary agreement that people getting together and so forth would have no meaning because if any union, whether it would be in the no rights of carpenters situation that you put, would strike then that in itself would be illegal.

But if we turn to the language of the bill as adopted by the Senate, it says, "The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen," or to appoint an arbitrator to hear and to determine such as disputes, the same language, hear and determine the dispute."

One case, the Board can do it and also appoint arbitrators and in the final version the arbitrators are out and the Board has this unwelcome job which it has been --

Justice William J. Brennan: But Mr. Sherman, in the veto message of President Truman, you have quoted in your brief one excerpt but I find this -- these others in it.

The bill would require the Board to and then quoted the word “determine,” to determine jurisdictional disputes of a work tasks instead of using arbitration, they accepted the traditional method of settling such disputes.

Mr. Louis Sherman: And this of course was the complaint which was that before it could make the determinations rather than having the option of using arbitration --

Justice Felix Frankfurter: But that would --

Mr. Louis Sherman: -- for that purpose.

Justice Felix Frankfurter: But if the Board settled it on the merits that it would be a form of arbitration.

Mr. Louis Sherman: That is correct but it would not be done by an arbitrator.

Justice Felix Frankfurter: You wouldn't be using -- you wouldn't be using that language instead of the form of arbitration.

Justice William J. Brennan: I think so.

Mr. Louis Sherman: Well, Your Honor, if I may say, I think that the veto message was merely drawing attention to the fact that this available method for disposing of the dispute which they thought superior and one of the main reasons was a time factor, and that's spread out in the language by Senator Morse, would not be available.

But the --

Justice Hugo L. Black: Under the Board's construction, how can a dispute be affected to that and finally settled.

Mr. Louis Sherman: Well, as far as the Board's construction is concerned in the main it goes to the point that whatever the employer assigns is the answer because if --

Justice Hugo L. Black: You mean it leased it up, leased the employer the same position he was in before that he has to settle it and he may have -- to have gone pointed (Inaudible).

Mr. Louis Sherman: Well, that's exactly what happened here. I went through the record and there's some very interesting comments about that from the employer involved, a Mr. Fitz of CBS, where he says that, "Having these conflicting claims, he was in no position to make the decision" and I don't think he was talking just intellectually or academically.

At one point here, the trial examiner who served the case said, "Mr. Fitz testified very clearly that is between the devil and the deep blue and trying to satisfy both of them.

So that --

Justice Hugo L. Black: That has been raised in a number of antitrust cases brought before us, has it not?

Mr. Louis Sherman: Yes, Your Honor.

Justice Hugo L. Black: In connection with these jurisdictional disputes and there was considerable dissatisfaction, although the Congress has had no way to settle it?

Mr. Louis Sherman: That is correct, Your Honor.

I think the typical situation they were talking about was an employer who wasn't breaking his neck, shall we say, in making decisions between powerful unions as we're talking to no rights case.

And yet the dispute -- now, as we see it from the legislative history and we think it's born out by it.

What Congress intended was to set up a procedure under which if the thing was serious enough to warrant a strike, that there would be some way of settling not the unfair labor practice.

That would be of adjudicated in accordance with regular procedures, but the dispute out of which the unfair labor practice arose.

In this case, the controversy whether the IA Union or the IP Union should have the work referred to the people that were in it's bargaining unit or under its contract and although that may seem to be a frightening thought there is an answer to it as developed in the building trades.

There's nothing to stop the establishment of a voluntary body for settling those disputes.

Justice Hugo L. Black: That wasn't before, was there?

Mr. Louis Sherman: No Your Honor, but frankly and clearly, what the Congress did here did help to place impetus behind the establishment of a voluntary body and there were two reasons for it.

One was the language of the Act and the other was this very thing that's been mentioned which is a desire of the parties, particularly in the building trades not to have their disputes settled by the National Labor Relations Board.

But that does mean that because they desire it both management and the labor, let us say, that that changes the statutory provisions of the Act or the legislative history thereof.

There were two things they didn't want to have happened.

Now, actually there's one aspect of it if I may say in connection with this Joint Board and which is spread in our brief.

That their problem today is what to do about the employer who decides to take advantage of the Board rule and what is the Board rule?

Board rule is that if the employer assigns the work then we'll have an inquiry as to whether there is an order of certification which let's say in this industry there is none, but they don't have certifications.

Now, under those circumstances, an employer does not have the incentive to become a part of this voluntary arrangement because he can by assigning, get the full support of the federal government to restrain any conduct in violation of that assignment.

In other words, there is no play on that basis for the development of a voluntary solution of the problem.

And as I say, we set that forth in the appendix of our brief which is the position of the Joint Board.

We assumed, talking about these policy considerations, that if the National Labor Relations Board recognized to have this function but then, either one or two things would happen.

The employers will now -- do not wish to bind themselves, the Joint Board procedure would do so or if they didn't, there would be a proceeding before the National Labor Relations Board.

Justice William J. Brennan: Well, wouldn't the Joint Board out of business?

Mr. Louis Sherman: No, Your Honor.

Justice William J. Brennan: It does not?

Mr. Louis Sherman: As a matter of fact, the Joint Board plan just to see --

Justice William J. Brennan: I mean if the -- if the Board were to take on the work which the Joint Board is now doing, is there any reason for the Joint Board to continue (Voice Overlap) --

Mr. Louis Sherman: Well, they think they have the -- every reason in the world.

In other words, the parties would rather have their affair settled by the industry than they would, the (Inaudible)

Justice William J. Brennan: I thought -- I thought what you just suggest to us whether employers would have no incentive to the members of the Joint Board.

Mr. Louis Sherman: Yes.

Justice William J. Brennan: They provoked these disputes merely by work assignments (Voice Overlap) --

Mr. Louis Sherman: Well they wouldn't be doing to provoke the dispute.

What we're saying that since they have, under the Board rule, a naked power to assign whichever way they assign, however arbitrarily, however capriciously and then get the support of the federal government to suppress the labor activity that may result from that assignment that that can be a better position from their point of view in submitting to either the Joint Board or submitting to the -- National Labor Relations Board.

Justice Felix Frankfurter: Before you sit down, I hope you will deal with the question that Mr. Manoli raised, namely as to standard by which the criteria on the basis of which the Board is to become the arbitrator if that (Inaudible)

Mr. Louis Sherman: Well, Your Honor --

Justice Felix Frankfurter: You don't have time but I would like to hear you before you sit down.

Mr. Louis Sherman: I will try to answer that right now.

Certainly, if this hearing were being held at the beginning of the administration of the Wagner Act, it will be difficult for anyone to answer that question in terms of, shall we say, how are all the appropriate unit questions are going to come up in the multiplicity of American industry going to be decided, particularly since those issues were new issues as distinguished from jurisdictional dispute matters which have been decided and which exists the very real things for many, many years.

Justice Felix Frankfurter: You mean -- you mean the private arbitrators.

Mr. Louis Sherman: Yes, there has been no governmental action of this sort.

Justice Felix Frankfurter: But if -- if there's a history of jurisdictional settlement?

Mr. Louis Sherman: Yes, Your Honor.

Justice Felix Frankfurter: Well --

Mr. Louis Sherman: And I think the standards that would apply, I would certainly hesitate to define each and every one of them but it seems to me that there could be developed a series of sensible approaches to that problem just as we did with the unit questions under the Act, but it would not just be custom and practice --

Justice Felix Frankfurter: And they're -- and they're very --

Mr. Louis Sherman: -- Your Honor because actually --

Justice Felix Frankfurter: They're very different. (Inaudible)

Mr. Louis Sherman: Well, I think they are very --

Justice Felix Frankfurter: Whether you should have gone to that --

Mr. Louis Sherman: -- they are very different in legal -- in legal --

Justice Felix Frankfurter: Well, you should have 30 or 100 of who should be included in a -- under the same roof within the same legal unit is something different than whether the electricians' electrical work should have it or the carpenters should have it.

Mr. Louis Sherman: I agree with their complete -- they're different questions.

As a matter of fact, this Board here argues its position with respect to certifications and it rules that a certification of a bargaining unit has nothing to do with work tasks.

That's in the Plumber's case and in General Analog.

They are different but they are the same in this sense only, Your Honor that there will have to be some work done with respect to development of appropriate standards.

What I'm suggesting is that -- that work will be much easier in this field.

I'm not talking about the consequences. The work will be easier in this field because they have something to work on.

Your Honor, permit me, we've had -- this reference made the National Labor Board and I've gone back to those decisions.

The New York Telephone Company case, other cases, those were straight out jurisdictional disputes which during the war, were handled on the basis of an arbitration and this was certainly in Senator Morse's mind when he was the one who advanced the idea.

It did not come from Mr. Hartley, did not come from Mr. Taft.

It came from Senator Morse and it was, I think, pursuant to the presidential action in his message.

Justice Felix Frankfurter: I -- I submit again that what he had in mind is a very different thing that was finally eventuated.

Mr. Louis Sherman: Well, I suppose that is -- that is -- that's --

Justice Felix Frankfurter: I should think and do you think here and out of the war whereby, jammed around and I think they even – we're going to settle this, this afternoon.

It's a very different thing from the day to day job for the board.

Mr. Louis Sherman: Well it's a --

Justice Felix Frankfurter: I'm not saying you're wrong.

I -- I -- my mind is quite --

Mr. Louis Sherman: Well, if --

Justice Felix Frankfurter: -- caught.

Mr. Louis Sherman: If --

Justice Felix Frankfurter: But all I'm saying is that you're imposing a very different responsibility on the Board, then -- then Senator Morse's (Inaudible)

Mr. Louis Sherman: Well -- well, I'm saying Your Honor, I wouldn't borrow that.

All I'm saying is that that's what he had in mind when he made his --

Justice Felix Frankfurter: He failed in his endeavor.

Mr. Louis Sherman: I would --

Justice Felix Frankfurter: He failed in his endeavor.

Mr. Louis Sherman: I must respectfully differ Your Honor because you will find, if you compare the language of Section 6 (k) of S.858 which is his bill, with 10 (k) which is the Act that you will find omitted only the optional authority to appoint arbitrators.

Justice Felix Frankfurter: Well, I think that's the crucial thing Mr. Sherman.

That to me is so decisive. It had something to do with these matters in the First World War.

It makes all the difference in the world.

You can get the whole momentum of the White House across the street from you as I had and you know that -- that you can make the kind of speech that you ought to make and there's war going on and there were specialists doing it.

I don't think the Labor Board -- the National Labor Board is a specialist in this domain.

Mr. Louis Sherman: Well it has become a specialist to great many, Your Honor.

I don't question that.

Justice Hugo L. Black: May I -- I hope you just -- it's alright.

I can't understand the statement that this -- the heart of it was taken out.

As I understood you, I'm not sure, Senator Morse offered a bill with two alternative methods to settle the jurisdictional strike.

Is that right?

Mr. Louis Sherman: The jurisdictional dispute.

Justice Hugo L. Black: One of them wants to submit it to the Board to settle the dispute and one of them wants to submit it to arbitrators.

Is that right?

Mr. Louis Sherman: Yes Your Honor.

Justice Hugo L. Black: And there was left in, the provision which were -- left it to the Board.

Mr. Louis Sherman: That is correct, Your Honor.

Justice Hugo L. Black: Well now why -- why could anyone -- I could (Inaudible) said, I don't understand it how the mere fact that he failed to get both and they -- they refused to accept both but did accept one.

Mr. Louis Sherman: And there wasn't a person, Your Honor who stood up and said that the effect of this was anything other than the elimination of this option to appoint an arbitrator.

Justice Hugo L. Black: I can understand --

Mr. Louis Sherman: To do that which is to argue --

Justice Hugo L. Black: (Inaudible) argument against its reasonableness, in fairness, in the way of doing it.

What I can't understand, why wouldn't they have two methods suggested.

They got one that takes out the other.

Justice Felix Frankfurter: Who has to appoint the arbitrator?

Mr. Louis Sherman: I beg your pardon?

Justice Felix Frankfurter: Who has to appoint --

Mr. Louis Sherman: The Board.

Justice Felix Frankfurter: The Board.

Mr. Louis Sherman: Yes, Your Honor.

Justice Felix Frankfurter: That's the point.

Justice Charles E. Whittaker: Well isn't --

Justice Felix Frankfurter: It makes all the difference in the world and not --

Mr. Louis Sherman: It would be a government arbitrator.

That's right.

Justice Felix Frankfurter: If -- if all the difference, for one, for the Board to appoint an arbitrator than for it to do the job.

Mr. Louis Sherman: Well, the language --

Justice Felix Frankfurter: I can assure you there are great differences.

Justice Hugo L. Black: There's a big difference in the policy in issue isn't it?

But what's the difference so far as the law is concerned, so far as we are concerned in construing it.

If they -- if he offered to have it done, settle about one or two ways, if Congress refused to accept one of his ways, how can we, without trying to take over the function of the legislature, say that we want to enforce them both.

Mr. Louis Sherman: Well, actually, the conflict came between the House bill on the one hand which was intended and -- and in this regard, it was different from the war, a restrictive legal prohibition against any form of jurisdictional strike is quite no matter what --

Justice Hugo L. Black: Is that -- is that where Senator Taft offered the bill originally?

How did he offer it originally?

Was it the outlaw jurisdiction as all together?

Mr. Louis Sherman: I don't believe so.

Justice Hugo L. Black: What did he provide about?

Mr. Louis Sherman: I don't think he had anything and I think this was added by Senator Morse prior to the bill -- let me get straight.

Senator Morse's bill came in, in March.

The bill was reported.

The Taft bill was reported in April and the Taft bill as reported contained the language which is pretty close to what we have now and it contained specifically the item on arbitrators.

Well as you first have the Morse's bill in March of 1947 then you have the Taft Bill as reported by the Committee.

I'm not sure about what bill he made for this.

Justice Hugo L. Black: You're not sure what's contained in first.

Mr. Louis Sherman: I beg your pardon.

Justice Hugo L. Black: You're not sure what it contained in first?

Mr. Louis Sherman: No.

I'm sure he didn't have (Inaudible) anything in here until Morses came forward with the proper issue.

Justice Hugo L. Black: Mr. Sherman, if you have a statute, if you have a proposal, and then Senator Morse (Inaudible) that the borad should give a determination or appoint an arbitrator to hear and determine, that vary to appoint an -- an arbitrator arbitrates and they – there you've got a definition to -- is the very characterization of the official, but with that cut out, you haven't got any definition as to an arbitration.

Mr. Louis Sherman: Well if Your Honor please, we look at the language.

The Board -- and this is 10 (k) that the bill has -- and as passed.

"The Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen or to appoint an arbitrator to hear and determine such dispute unless within 10 days and so forth upon compliance by the parties to dispute with the decision of the Board, or the arbitrator appointed by the Board."

Now then, we've got to find a dichotomy here where we're talking about the decision of the Board meaning one thing and the decision of the arbitrator meaning another thing and the very sentence which gives them exactly the same effect.

If I may suggest Your Honor, leaves me simpler to say that all that happened here was -- they decided for good or for bad, but instead of having these matters decided by arbitrators at the option of the Board, they want to put the whole job in the hands of the Board.

Justice Charles E. Whittaker: Is this not what that language really means?

He's got any proceeding here shall be through the Board.

It may act itself or it may appoint an arbitrator to do so.

Now, the conference struck out the alternative leaving as the statute now leaves the language, the Board is directed to determine the dispute.

Isn't that right?

Mr. Louis Sherman: That's correct Your Honor.

Justice Charles E. Whittaker: Whereas all by striking out this alternative, they didn't -- the one they didn't weaken the other, did they?

Justice Felix Frankfurter: By rephrasing a provision of the statute which is ambiguous and making it clearer, you do not necessarily answer the question as to what the unclear provision means.

I mean --

Mr. Louis Sherman: Well, of course we have contemporaneous --

Justice Felix Frankfurter: -- the statute doesn't read that Justice Whittaker has stated it.

That is the way the statute reads out, you wouldn't be here --

Mr. Louis Sherman: That is correct.

Justice Felix Frankfurter: -- because Board would have acted differently.

The statute doesn't say or didn't say, "The Board shall have power either to do this directly or appoint an arbitrator and then struck it out."

That isn't the language.

The language was very different and they struck out that (Inaudible) -- which there was the severest attack without telling it as to why they struck it out and what they left.

Justice Charles E. Whittaker: And wasn't that language very different?

I'd -- I -- I understood that it's so.

I still --

Mr. Louis Sherman: Your Honor, it wasn't very different as far as I can see, just took out the words or to appoint an arbitrator.

Justice Felix Frankfurter: But I've suggested to you, if you leave in the word or to appoint an arbitrator one knows what an arbitrator does.

But the words to hear and determine still not leave you to determine what the scope of the determination should be.

Mr. Louis Sherman: Well, it seems to me --

Justice Hugo L. Black: What I'm saying is you do it by arbitration or to say for -- that the Board doesn't.

Justice Charles E. Whittaker: But many statutes --

Mr. Louis Sherman: Well, even -- even arbitrator is merely described.

In other words, it's as if ad hoc individual as distinguished in the five-man board more an arbitrator if you will, but the function is the same to hear and determine the dispute out of which the unfair labor practice arose.

Justice Hugo L. Black: I guess the object is the same too to get those jurisdictional disputes settled.

Mr. Louis Sherman: Yes, because I do think that the Congress was perhaps a little more far seeing than the Board.

They knew about these disputes.

They're tough and all that sort of thing, but nevertheless, just as they believe, people can refuse to settle on any basis that strikes to recognition would be lessened if there were certifications.

I -- after all, the certification is just a piece of paper too, but people tend to accept these things.

But so here with jurisdictional disputes, that if there was somebody or something or some board, which would actually decide the jurisdictional dispute that that would tend to reduce the dispute.

Of course that's what we found on the Joint Board, that's a private party which has done that.

The problems in the relationship between that Joint Board and the National Labor Relations Board as I say covered.

Justice William J. Brennan: I notice Mr. Sherman that in the preamble to the agreement that created the Dunlop Board back in 1948, recited, desired to provide for a final and authoritative disposition of such disputes by an impartial but informed tribunal that is fully familiar with the industry and its method and problem and thereby, so far as possible to avoid burdening the National Labor Relations Board with the disposition of such disputes under the provisions of 8 (b) (4) (D) and 10 (k).

Mr. Louis Sherman: That shows, Your Honor, that they had in mind this very thing that we're talking about because the kind of dispute they were going to settle was precisely the same kind of dispute they thought the Board was going to settle.

Justice William J. Brennan: In that article -- article --

Mr. Louis Sherman: As a matter of fact, in the last paragraph on this --

Justice William J. Brennan: Article 8 says, "It's the sense of the party that the members and chairman of the Joint Board shall tender to the National Board --

Mr. Louis Sherman: That's --

Justice William J. Brennan: -- their services as expert witnesses in any hearing held by that Board under 10 (k)."

Mr. Louis Sherman: Yes, Your Honor.

That -- that was what I was going to add.

Chief Justice Earl Warren: Very well.